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Is Winter Over for the Second Amendment?

Retired Associate Justice David Souter
Retired Associate Justice David Souter

No. But the US Supreme Court just denied the City of New York’s motion to hold briefing in NYSRPA et al v. City of New York et al in abeyance. Given that this is the first Second Amendment case the Supreme Court has agreed to hear argued on the merits in ten years, it is a candle in an icy world of darkness.

These past ten years and more the lower courts have waged war on the Second Amendment. Last Friday, for example, a three-judge panel of the 1st circuit court of appeals upheld Massachusetts law prohibiting the sale, transfer, and possession of certain semiautomatic firearms and magazines. A separate three-judge panel of the 1st circuit court of appeals had also held that the “core right” of the Second Amendment right to keep and bear arms for the purpose of self-defense is limited to in and around one’s home. A cert petition is pending before SCOTUS in that earlier case and I suspect we will see a cert petition filed in the latter case in a few months.

Retired Associate Justice David Souter opposes second amendment.
Retired Associate Justice David Souter

Ironically, one of the three judges who voted to uphold these firearm and magazine bans was retired Supreme Court Associate Justice David Souter who, you may recall, was one of the four justices who voted to pronounce the Second Amendment dead in the District of Columbia v. Heller decision. As a retired justice, he is free to sit “by designation as a judge on lower courts and hear cases. Justice Souter being assigned to hear a Second Amendment case fails the smell test and begs the question, “What were they thinking?”

The Federal First Circuit court of appeals isn’t the only one of the thirteen circuit courts of appeals which happens to have a majority of judges who oppose the Second Amendment. Unfortunately, the first of the circuit court of appeals judges nominated by President Trump and confirmed by the US Senate over the objections of the home-state senators was not confirmed until this year. A time when Mr. Trump has only a handful of nominees left to fill on the court of appeals and even then one of those nominees was recently confirmed by the Senate to fill a seat on the 9th circuit court of appeals with the blessing, approval, and vote of California’s leftwing, senior senator, Dianne Feinstein.

The Federal Seventh Circuit court of appeals is a prime example of why Mr. Trumps’ playing along with the Senate “blue slip” tradition of blackballing judicial nominees has been a disaster.

In 2012, with just a one-vote margin, a decision which struck down the State of Illinois bans on carrying loaded and unloaded firearms in incorporated cities, towns and villages survived.

Since then, Mr. Trump has appointed four people to fill vacancies on the Seventh circuit court of appeals giving Republicans appointees a nine-vote to two dominance over the Democrat nominees.

Unfortunately, two of Mr. Trump’s four nominees filled vacancies from duty stations in the State of Illinois which gave its two leftwing senators veto power over his nominees via their blue slips. A fact that Mr. Trump did not complain about until the Kavanaugh confirmation hearings. As a result, two of his four nominees are rabidly opposed to the Second Amendment.

Senate “Blue Slips” which gave Federal senators the ability to blackball circuit and district court nominees have reportedly been around for 100 years. And since six of the eleven active circuit court judges were nominated with the blue slip approvals of leftwing Illinois senators going back to 1983, what should have been a circuit with an overwhelming majority of Republican-nominated judges defending the Second Amendment is instead now a circuit with a majority of judges who oppose the Second Amendment.

To make matters worse, Republican Senate Majority Leader Mitch McConnell has clearly stated that home state senators will continue to have the final say in who will be confirmed to be district court judges.

What does all of this mean?

All of this means is that unless the Supreme Court decides to get serious and decide to stand-up for the Second Amendment by engaging in corrective behavior (which the justices say isn’t their job) or the Congress does its job by removing these leftwing judges (never gonna happen) then the courts will no longer be a recourse for defending the Second Amendment except in one or two of the thirteen Federal courts of appeal and rarely in a Federal district court where Second Amendment lawsuits begin.

If one lives, travels to or does business in a state like California, Illinois, New York, New Jersey or any of the other leftwing states where the majority of voters are leftists, with leftists sitting on juries, presiding as judges, and prosecuting the anti-gun laws made by leftwing legislators then what recourse remains for the minority of us who wish to vindicate our Constitutional rights?

No. The Second Amendment winter is not over. We now have to wait until SCOTUS issues its decision in NYSRPA et al v. NYC et al, and wait to see whether or not SCOTUS grants any or all of half-dozen additional Second Amendment cases with cert petitions currently sitting in the Court’s inbox.

Charles Nichols is a proponent of open carry.  In 2011, he filed a Federal Civil Rights lawsuit seeking to overturn California’s 1967 ban on openly carrying loaded firearms in public for the purpose of lawful self-defense.  Oral argument in his case took place on February 15, 2018, before a three-judge panel of the 9th circuit court of appeals. Charles follows court cases relating to The Second Amendment and tells us what they really mean instead of what reporters, who have never read the decisions in the cases, say they mean.

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